SCT File No.: SCT-S004-13

SPECIFIC CLAIMS TRIBUNAL

B ETWEE N:

WOOD MOUNTAIN LAKOTA FIRST NATION

Claimant v.

HER MAJESTY THE QUEEN IN RIGHT OF CANADA As represented by the Minister of Indian Affairs and Northern Development

RESPONSE Pursuant to Rule 42 of the

Respondent

Specific Claims Tribunal Rules of Practice and Procedure

This Response is filed under the provisions of the Specific Claims Tribunal

Act and the Specific Claims Tribunal Rules of Practice and Procedure.

TO: Wood Mountain Lakota First Nation As represented by G. Rangi Jeerakathil MacPherson Leslie & Tyerman LLP Barristers & Solicitors 1500 - 410 - 22"d Street Saskatoon, Saskatchewan S7K 5T6 Phone: (306) 975-7100 Fax: (306) 975-7145 Email: RJeerakathil@mlt.com

SCT File No.: SCT-5004-13

1. This is the Crown's Response to the Declaration of Claim (the ·Claim")

filed by the Wood Mountain Lakota First Nation (the "First Nation") with the

Specific Claims Tribunal (the "Tribunal") on February 11, 2014 pursuant to

the SpeCific Claims Tribunal Act (the "Acf').

2. The Declaration of Claim relates to an alleged alienation of reserve land

from the First Nation's reserve.

I. Status of Claim (R. 42(a»

3. On August 31, 2009, the First Nation submitted its claim to the Minister of

Indian and Northern Affairs Canada (the "Minister"). The claim was filed

with the Minister on October 8, 2009.

4. On August 24, 2012, the Minister notified the First Nation in writing of his

decision not to accept the claim for negotiation.

II. Validity (R. 42(b) and (c»

5. The Crown does not accept and specifically denies the validity of all

allegations and claims set out in the Claim. Without limiting the generality

of the foregoing, the Crown denies the allegations contained in paragraph

28 of the Declaration of Claim that the Crown:

a. Breached any legal obligation to provide the Claimant with the Wood

Mountain Reserve;

b. Owed a statutory legal obligation to the Claimant under section 49 of

the 1906 Indian Act or that it breached the same as alleged;

c. Had a common law fiduciary obligation to the Claimant to obtain a

surrender or provide compensation or that it breached the same as

alleged.

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III. Allegations of Fact - Declaration of Claim: Acceptance, denial or no knowledge (R. 42(d»

6. The Crown, unless hereinafter expressly admitted, denies each and every

fact alleged in the Claim and puts the Claimant to the strict proof thereof.

7. The Crown is unable to indicate agreement or disagreement with the facts

contained in paragraphs 7 and 8 of the Declaration of Claim.

8. The Crown admits the facts in paragraphs 9, 10, 14, 15, 16, 17, 18 and

27.

9. With respect to paragraphs 11 and 12 of the Declaration of Claim, Indian

Commissioner David Laird's observations in an April 16, 1908 letter to The

Secretary, Department of Indian Affairs (DIA) were as follows:

The basic principle of our Indian policy has for its object, I take it, not the meting out of their strict rights or the advancement of the interest of the Indians as a race apart and without regard to the public interest as a whole. Treaties were made and reserves set aside for the purpose of making the settlement of the West possible, and if these straggling Indians in the vicinity of Medicine Hat and Maple Creek are now, owing to the extent to which that country is being settled, a public nuisance, it is, in my judgment, in the public interest that they should be settled upon a reserve; and if we cannot get them upon reserves which have already been set apart, we can only do the next best thing, and that is, to get them upon a reserve which so meets their wishes as to lead them to live upon it.

10. The Crown denies the facts alleged in paragraphs 19 to 26.

11 . The Crown has no knowledge of the facts set out in paragraphs 13.

IV. Statements of Fact (R. 42(a))

12. In June 1909, Reverend A.D. Pringle wrote to the Commissioner of Indian

Affairs requesting that a reserve be set aside for the "Indians who reside

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for the most part in the Wood Mountain district 9 who frequently camp in

the vicinity of Moose Jaw".

13. In July 1909 Indian Commissioner Laird recommended to Deputy

Superintendent General of Indian Affairs Scott that Reverend Pringle's

request be considered if it could be ascertained that they would settle

down on a reserve at Wood Mountain. Laird pOinted out that the Sioux

were normally given 80 acres for a family of 5, and this group consisted of

70 persons so 36 sections would an excess amount.

14. In September 1909 the Indian Affairs Chief Surveyor Bray indicated that

the Wood Mountain Sioux were non-treaty Indians and had not had any

lands allotted to them, but since they were Indians under the Indian Act,

they were precluded from homesteading. He recommended that

Township 4 be reserved for sale or settlement ·until this Department has

been able to ascertain what portion of the said Township is required for

Indian purposes".

15. In December 1909 the Interior Secretary asked DIA Secretary McLean to

specify which lands should be reserved for the Sioux in the Wood

Mountain vicinity, as the Department could not exclude all of Township 4

from disposition indefinitely.

16. In May 1910 Inspector of Indian Agencies Graham went to the Wood

Mountain area to determine the requirements of the Indians and select

suitable lands for them. He recommended that the North Half of Township

4 be reserved for them.

17. In June 1910 DIA Secretary McLean instructed Graham to select a tract of

land for the Sioux at Wood Mountain. Graham made his recommendation

of the northern half ofTownship 4, Range 4 in July 1910.

18. In July 1910 McLean wrote to the Interior Secretary, regarding the lands

that had been surveyed for the Wood Mountain Sioux and requested the

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Interior Department to pass the necessary Order in Council to have the

lands vested in the Superintendent of Indian Affairs. The lands consisted

of sections 19, 20, 21, 22, 23, 24, 25, 28, 30, 31, 32, 33, 34, 35 and 36,

the northeast % of section 26, and the northwest, southeast and

southwest %s of section 27. The northeast % of section 27 had been

previously homesteaded, the remainder of section 26 was reserved for the

Hudson's Bay Company, and section 29 was reserved for school lands.

19. On October 14, 1910 the Deputy Minister of the Interior, in a letter to the

Chief of the Land Patents Branch of the Department of the Interior, stated

that although it had been decided to hold the lands for the Indians, they

should not be transferred by Order in Council but "simply reserved in our

books for the time being ... ".

20. A subsequent letter on October 29, 1910 from Interior Secretary Keys to

DIA Secretary McLean confirmed that the lands would not be transferred

by Order in Council.

21. Correspondence between DIA and the Interior Department between

November 1910 and January 1913 termed the lands as a "temporary

reservation" and indicated there may be grounds to have it set aside

permanently if the Indians settled on it and made use of it.

22. In 1913 the DIA again asked the Department of the Interior to have the

lands of the temporary reservation confirmed by Order in Council as an

Indian Reserve.

23. In April 1919 the Indian Commissioner made the observation to the

Minister of the Interior that ''These Indians have not made use of the land

to any extent and I doubt if they ever will. n On April 29, 1919 Surveyor

Bray reported to the Deputy Minister of Indian Affairs that "As sufficient

time has elapsed to enable the Indians to occupy the lands they require

and to make use of them, Mr. Graham's suggestion might be acted upon,

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SCT File No.: SCT-5004-13

that is to say, all of that portion of the reserve not required for the Indians

might be returned to the Department of the Interior."

24. On May 12, 1919 DSGIA Scott informed the Chairman of the Soldier

Settlement Board that since "a portion of the land temporarily reserved for

the Sioux Indians at Wood Mountain ... is not required for the Indians,

specified sections were handed over to the Interior Department for soldier .

settlement purposes".

25. On August 5, 1930 Order in Council P.C. 1775 set apart "for the use of the

Indians as Wood Mountain Indian Reserve No. 160 the northeast Yo of

section 13, sections 22,23,2425, 34, 35, 36, the northeast Yo of Section

26, and the northwest Yo and southern half of Section 27. The reserve

was described as 5,280 acres in size.

26. The reserve was subsequently expanded by Order in Council P.C. 1968-

166.

V. Relief (R. 42(f))

27. The Crown seeks to have the Claim dismissed in its entirety;

28. Costs; and

29. Such further relief as this Honourable Tribunal deems just and may allow.

VI. Communication (R. 42(g))

30. Respondent's address for service of documents:

Department of Justice (Canada) Prairies Regional Office (Saskatoon) 10lh Floor, 123 - 2nd Avenue South Saskatoon, SK S7K 7E6 Attention: Scott D. MacDonald I Lauri M. Miller

31. Facsimile number address for service: (306) 975-5013

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SCT File No.: SCT-5004-13

32. Email address for the service of documents:

saskSCT -5004-13-woodmtnlakota@justice.gc.ca

Dated this day of March, 2014.

Acott D. MacDonald, Counsel for the Respondent

~4.£A. 4/ to': i"auri M. Miller,

WILLIAM F. PENTNEY Deputy Attorney General Per: Scott D. MacDonald and Lauri M. Miller Department of Justice Prairie Region (Saskatoon) 123 - 2nd Avenue South, 10th Floor Saskatoon, SK S7K 7E6 Tel: (306) 975-5870 I (306) 975-6070 Fax: (306) 975-5013

Counsel for the Respondent

E-mail address:saskSCT-5004-13-woodmtnlakota@justice.gc.ca

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